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    Murderer's death sentence questioned

    Attorneys say it was improper for a judge to ask a prosecutor to write Wayne Tompkins' order.


    © St. Petersburg Times, published April 18, 2001

    TAMPA -- Questions were raised Tuesday about how a convicted murderer was sentenced to death 16 years ago when Harry Lee Coe was a circuit judge.

    Coe had asked a prosecutor to write the order sentencing Wayne Tompkins to death, rather than write the order himself.

    Defense attorneys for Tompkins argued during a hearing Tuesday that Coe's request was improper and grounds for a new sentencing that could spare their client's life.

    But former prosecutor Mike Benito, who wrote the order in 1985, said Tuesday it was common in those days for judges to ask prosecutors to write them.

    "You know, (Coe) read the order," he said. "He read the order and agreed with the one I prepared. What's the problem with that?"

    Not until 1995 did the Florida Supreme Court rule in an unrelated case that the practice was improper.

    Tompkins is scheduled to die by lethal injection for the killing of a 15-year-old Tampa girl.

    At the hearing before Judge Daniel Perry, Tompkins' attorney, Martin McClain, called the sentencing improper. "It requires a resentencing," he said.

    Questions were raised about Tompkins' case last week when officials admitted evidence had been lost.

    Before signing the death warrant March 22, Gov. Jeb Bush asked the state whether there was any evidence available for DNA testing, a common request before he signs a death warrant.

    He was told there was not. What he wasn't told was that hair collected at the crime scene had been lost.

    Tuesday, prosecutors said there was no attempt to deceive the court or the governor.

    "Worst case, there was a miscommunication," said assistant state attorney Karen Stanley.

    The State Attorney's Office believed the Governor's Office was asking if any evidence was available that would exonerate Tompkins if tested, Stanley said. They do not think the hair, even if it could be located, would exonerate Tompkins.

    It was not a factor in gaining his conviction, they said, which was based on witness testimony placing him at the scene.

    Tompkins was convicted of first-degree murder in the death of Lisa DeCarr, the daughter of Tompkins' onetime girlfriend, Barbara DeCarr. After she was reported missing in March 1983, DeCarr's body was found 14 months later under her mother's house.

    Based on the lost evidence, and Coe's actions at sentencing, McClain asked Perry for a stay of execution and a new trial. Perry made no ruling on those requests, but scheduled a hearing for today.

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